European Union (Amendment) Bill

My Lords, I am pleased to follow the noble Lord, Lord Plumb, in that my position in the speakers list marks the beginning of the latter half of this debate. In the brief time allotted to us, I would like to make only two points. Does this Bill amount to a constitution and should the treaty that it embodies be ratified without a referendum of the British public? I may fail to persuade noble Lords of the correct answer—not that your Lordships do not have open minds on this—because both of the questions may be viewed from two perspectives: political or legal; head or heart. There is no set definition of a constitution in British law because unlike virtually all other countries, we have never had one as such, and our jurisprudence has not had to get to grips with the particular forms and effects that a constitution may take. The written constitution is alien to us for our British constitution is a natural state of things, sometimes made by statute. It involves the union of Scotland, England, Wales and Northern Ireland; it is enhanced by human rights, membership of the United Nations, and by age-old custom and convention such as the position of the Crown and your Lordships’ own House. In other words, a constitution can be a cumulative affair and may take many forms that come together. A constitution is normally national, presupposing a state, a populace or a common identity. In the alternative, the seeds of these national requirements are present, and the constitution is to cement them. In the case of Europe, these conditions beg the question: is Europe to be a new state with one population and one identity? This Bill, whatever the nomenclature to be adopted, undoubtedly builds on the progressive integration that started some 50 years ago. It is part of a wider process and, arguably, less ground-breaking than the Treaty of Maastricht, although in the end they have to be read together. Cumulatively, in my view, the states of Europe have reached a position where they have a constitution, even if not in one document and even without that name. All the elements are there. The treaty of Lisbon gives the European Community a new foundation and a new name. It increases the powers of the parliament, establishes legal personality, changes the voting system, and draws in justice and home affairs, as did the abandoned European constitution of 2004. It also makes provision for a president. This treaty and the earlier ones can function only if the states of Europe pool some sovereignty. Its constitutional nature is also evident in the provisions dealing with foreign policy. A high representative for foreign affairs and security, regardless of the name, complete with diplomatic missions to fortify the European Union presence on the world stage, is equivalent to a foreign policy. This risks a conflict of views if the British and French representatives on the Security Council were to express views differing from their European high representative, and member states are now to be duty bound to come to each other’s aid if attacked. Nothing could be more like a constitution than these provisions, and they are coupled with a loss of UK power by reduced influence in the Commission and in voting. There is provision in the treaty for increased European intrusion into our legal system as the European Court may gain jurisdiction over criminal matters, justice and home affairs, and additional rights for individuals to seek redress outside of national courts. There will be new jurisdiction for the European Court of Justice over states’ failure to implement European legislation in the areas of criminal law and policing, subject to opt-outs. New European laws that will require transposition into English law are of great concern to me as a member of the Committee on the Merits of Statutory Instruments of this House. Already so many statutory instruments based on European requirements are rushed through that there is no chance to reflect on the principle of subsidiarity and to ask whether they are really necessary. Nor is there time to follow them up, and there is no mechanism to check that they are doing what they were intended to. A new legal order has been created by the treaty, filling in such gaps as had previously been left in subjecting British law to European legislation. In my view, the legal answer is that yes, this is a constitution by accumulation. The political answer is that it is not, and this conclusion must reflect the unwillingness to hold the referendum that was promised by all parties’ manifestos at the last election, even if some have now changed their minds. After all, there is no lack of willingness on the part of this Government to make other constitutional laws and to describe them as such. Witness the Human Rights Act, the abolition of the post of Lord Chancellor, the institution of the Supreme Court and the plans to strip away the royal prerogative, which are under debate at the moment. We have to ask ourselves whether we should pass this legislation without that promised referendum when it is apparent that the substantive effect is close to that of the European constitution of 2004—not that that is the crucial factor in my analysis. In answering the question about the referendum, we may find ourselves giving one answer from the head and another from the heart. A referendum is only likely to be held when the Government are split on an issue and there is no other way out. We have had too few in this country to be able to state with confidence that there is any ““usually”” or ““normally”” about the issue. The referendum question, if put, needs to be one that the public can understand and fairly reflects the issue to be decided. Let there be no doubt: I do believe that the public understand very well what is in the treaty and what is at stake. The head, however, says no to a referendum. It says that this House and the other place are the ones charged with taking this decision. The head says that gradual accretion of power to the European Union is only to be expected because any such institution has a life of its own and a momentum of growth. It says no because Ireland is the only one of 27 states planning a referendum. It says no because the manifesto promise is, sadly, unenforceable. I speak in generalities about the law, being well aware of the sub judice rule, but one could argue in a case that the Government made a promise to hold a referendum which they broke, and that that was a breach of contract with at least the Labour voters in the 2005 general election. One could argue from a legal point of view that the promise created a legitimate expectation, which is a term of legal art, that a referendum would be held. No doubt the Government would argue that a manifesto promise is incapable of giving rise to a legally binding contract with the electorate. This is sad but apparently true at the moment, although the noble and learned Lords of your Lordships’ House might find the argument odd if they remember the case that every new law student studies of Carlill and the Carbolic Smoke Ball Company. That case upheld the enforceability of a promise made in an advertisement, which I compare with a manifesto. The advertisement said that the carbolic smoke ball would fend off colds, and that if it did not, a sum of money would be paid. A lady consumer acted on the promise by buying the product, but succumbing to flu. She won her case on the ground that a promise was not just a puff, it was a promise on which she had relied, even though it was a promise made at large to the general public. She was the one who relied on it, so she had an enforceable right. Legally I may be wrong, but the heart tells me otherwise. It is a question of accountability. The structure of the European Union, the nature of its decision-making process and the legislation make full democratic accountability difficult to achieve. The Commission cannot properly be held to account by a national parliament, and our Parliament is overwhelmed, I believe, by the volume of EU legislation. Somewhere in all of this the public—the people—must be allowed to question the changes being made in their name and to them. At the end of my few minutes, I would like to give a simple message to your Lordships. The law does not prescribe a referendum, but there will be no accountability, a concept much lauded in the other place last week as a constitutional essential, and no trust until a referendum is held. There will be no going forward in Europe, let alone to the centre, without the wholehearted consent of the British people, and I have no sense that this has been given. If in doubt, your Lordships’ House should be guided by the practice of upholding that which was promised in the manifesto of the governing party. So my heart goes with a referendum.